Filed
`
`D.C. Superior Court
`12/22/2022 18:12PM
`Clerk of the Court
`
`December 22, 2022
`
`United States Attorney’s Office
`555 4th St NW
`Washington, DC 20530
`
`Re: United States v. Harry Tucker, 2022 CF2 1977
`
`Goodafternoon,
`
`I represent Mr. Tucker in the above referenced matter. Pursuant to the
`District of Columbia Court of Appeals’ suggestion in Rosser v. United States,
`381 A.2d 598 (D.C. 1977), as well as Brady v. Maryland, 373 U.S. 83 (1963),
`Superior Court Criminal Rule 16, the Innocence Protection Act (“IPA”), D.C.
`Code § 22-4131 et seq., and the Fifth and Sixth Amendmentsto the United States
`Constitution, I am writing to memorialize the discovery received to date and to
`reiterate prior disclosure requests made on Mr. Tucker’s behalf, including those
`made at the initial hearing. Please let me know if my understanding of the
`disclosures madeto date conflicts with your understanding. Please comply with
`my additional discovery requests by December30, 2022. Your response enables
`Mr. Tucker to prepare adequately to file motions and to prepare fortrial, if
`necessary. If I have not heard from you bythen, I will assumeall representations
`madein this letter are accurate and that any additional requests are denied.
`
`If the requested materials exist but the government declines to provide
`them based on a theory that they are not discoverable, please let me know
`immediately so that I may file appropriate motions in a timely manner. In
`connection with the following requests,
`I additionally request
`that
`the
`governmenttake steps immediately to preserve any and all evidence to which
`Mr. Tuckeris entitled access under Rule 16, Brady, or any other applicable law.
`
`Rule 16 Discovery Requests
`
`Documents and Tangible Objects, Rule 16(a)(1)(E)
`
`Pursuant to Superior Court Rule of Criminal Procedure 16(a)(1)(E), I
`request documents, tangible objects, and other physical evidence that I have not
`received. I request that you permit the defense to inspect and copy or photograph
`books, papers, documents, photographs, tangible objects, buildings or places, or
`copies or portions thereof, which are in the possession, custody or control of the
`government, and which are material to the preparation of Mr. Tucker’s defense,
`or are intended for use by the government as evidencein their case in chief at
`the trial, or were obtained from or belong to Mr. Tucker. Lrequest audit trail
`logs for all body worn camerafiles in this case.
`
`THE
`_ PUBLIC
`DEFENDER
`SERVICE
`
`
`
`Avis E. Buchanan
`Director
`
`Rudolph Acree, Jr.
`Deputy Director
`
`BOARD OF TRUSTEES
`
`Blair G. Brown
`Chairperson
`Vacant
`Vice Chairperson
`Tra Arlook
`
`Miriam Carter
`
`Laurie Davis
`
`Marc Fleischaker
`
`Jamie Gardner
`
`Lisa Greenman
`
`Marlon Griffith
`
`Larry Moon, Jr.
`Heather Pinckney
`Deborah Shore
`
`633 Indiana Avenue, NW
`
`Washington, DC 20004
`
`Tel
`
`(202) 628-1200
`(800) 341-2582
`
`TTY (202) 824-2531
`
`Fax
`
`(202) 824-2784
`
`www.pdsdc.org
`
`

`

`Page 2
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`Tangible Objects, Rule 16(a)(1)(E)
`
`Please provide a viewing letter authorizing myself and Avery Wilmore to view and
`photographall tangible evidence in this case. The letter can be emailed directly to defense counsel
`at vgovindaraju@pdsdc. org.
`
`To the extent that any of these documentsare not discoverable because they are statements
`made by prospective government witnesses, pursuant to Rule 16(a)(2), I am requesting that these
`documents be providedif, and when, it is determined that the author or witnessis not going to be
`a governmentwitness.
`
`Brady Requests
`
`I hereby make a general request for exculpatory and impeachment information pursuant to
`Brady v. Maryland, 373 U.S. 83 (1963) andits progeny.
`
`I also makethe following specific requests pursuant to Brady and Lewis v. United States,
`408 A.2d 303 (D.C. 1979), and request that the governmentdisclose such information in advance
`of trial so that the defense may investigate, if necessary, and incorporate into its preparation for
`trial;
`
`a. All inconsistencies or differences between any accounts provided by the complainant, or
`inconsistencies or differences between any accounts by the complainant and other
`witnesses;
`
`b.
`
`any inconsistencies between the description provided by any witnesses and Mr. Tucker;
`
`c.
`
`any information tending to underminethe reliability of any eyewitness accounts or
`descriptions;
`
`d. police bias and credibility information, including source documents, about any lawsuits
`against, findings of misconduct or complaints sustained against (including information and
`source documents about any discipline imposed against) any officers involved in the
`investigation and prosecution ofthis case, and all adverse credibility findings and findings
`of constitutional violations (including but not limited to Fourth and Fifth Amendment
`violations) involving any of the officers involved in the investigation or prosecution ofthis
`case. Given the repeated occurrence of the government denying such information exists
`only for it to be later uncovered by defense investigation, I request a proffer of the steps
`the governmenthastaken to locate this information, as well as all source documents. I also
`request that you consult the independent database ofthis information that is maintained by
`the Office of the Attorney General for the District;
`
`e. police bias and credibility information, including source documents, about whether any of
`the officers involved in the investigation and prosecution of this case had any complaints,
`intervention plans, lawsuits, or investigations of conduct pending at any point during the
`pendencyofthis case, including but not limited to the officers mentioned above. Given the
`
`

`

`Page 3
`
`repeated occurrence of the government denying such information exists only for it to be
`later uncovered by defense investigation, I request a proffer of the steps the government
`has taken to locate this information. I also request that you consult the independent database
`of this information that is maintained by the Office of the Attorney General for the District;
`
`f. All intervention plans that were in place as of April 8, 2022, or which have been imposed
`since that date for Officer Griffin, Officer Bell, and any other officer or member of MPD
`present.
`
`g.
`
`h.
`
`i.
`
`j.
`
`k.
`
`1.
`
`any information that others were arrested or questioned regardingthis case;
`
`the identities of and contact information for any witnesses whoindicate that Mr. Tucker
`did not commit this offense, and the substance of those witnesses’ statements;
`
`the identities of and contact information for any witnesses who donot fully corroborate the
`government’s case or who serve to impeach the government’s evidence;
`
`any information tending to show the unreliability of a government witness, or which would
`tend to discredit the testimony of a governmentwitness;
`
`any evidence of bias for the government or against Mr. Tuckerforall civilian and police
`witnesses, pursuant to Giglio v. United States, 405 U.S. 150 (1972);
`
`any evidence of bias or motive by any witnesses who have an immigration concern which
`the witness might believe or might have believed would be favorably affected by
`government action in this case, including but not limited to any conversations with any
`agents of the government, including police, victim advocates, or other staff of the U.S.A.O.,
`regarding immigration status or obtaining immigration benefits, such as U, T, or S visas,
`through cooperation with law enforcement. See generally Delaware v. Van Arsdall, 475
`U.S. 673 (1986). I request the dates and substances of all statements made by either
`governmentactors or witnesses regarding possible immigration issues or benefits.
`
`m. any prior bad acts of government, civilian, and police witnesses, pursuant to Giles v.
`Maryland, 386 U.S. 66 (1976), including use of false documents for employment or
`immigration purposes;
`
`n.
`
`0.
`
`p.
`
`any prior false reports pursuant to Lawrence v. United States, 482 A.2d 374 (D.C. 1984),
`including but not limited to prior complaints or reports to the police or enforcement
`agencies that did not result in conviction;
`
`any prior inconsistent, non-corroborative, or other witness statement that will not reflect
`the witness’s trial testimony;
`
`all information in the government’s possession indicating that the mental state or capacity
`of any government witness is below normalor is in any way abnormal;
`
`

`

`Page 4
`
`q.
`
`r.
`
`s.
`
`any evidence that any government witness or informant was under the influence of any
`alcohol, narcotics, or any other substanceat the time of the incident about which the witness
`will testify, or that the witness’s faculties were impaired in any way;
`
`information concerning any impeachable convictions of any governmentwitnesses;
`
`all information indicating that:!
`
`1.
`
`any government witness had a pending juvenile, immigration or criminal case at
`the time of the incident in the present case and/or has had any such casessince that
`date;
`any governmentwitness had a pending school disciplinary proceedingsat the time
`of the incident in the present case and/or has had any such cases since that date;
`
`trial, fact-finding hearing,
`any government witness had an arrest, guilty plea,
`sentencing or disposition pending at the time of Mr. Tucker’s arrest and/or since
`that date;
`
`any government witness was committed or on probation, parole, or supervised
`release in any juvenile or adult case at the time of the incident in the present case
`or since that time;
`
`any government witness has now, or has had, any liberty interest that the witness
`might believe or might have believed would be favorably affected by government
`action; and,
`
`any deals, promises, or inducements that have been made to any government
`witness in exchange for their testimony;
`
`t.
`
`any information that any government witness was, has been, or is a police informant, from
`the time of the incident in this case up to and including the day(s) of trial. If any witness
`is or has been an informant, I request disclosure of the following information:
`
`1.
`
`Length and extent of witness’s informantstatus;
`
`2.
`
`Amounts normally paid to the informant;
`
`Non-monetary assistance also provided to the informant, including but not limited
`to assistance in avoiding or minimizing harm from any pending charges, whether
`the charges existed at the time of the offense or any other time through the day of
`trial;
`
`' With respect to the below information, I hereby request docket numbers, dates, and
`jurisdictions for any and all requested cases.
`
`

`

`Page 5
`
`u.
`
`v.
`
`4. All benefits or promises of benefits to an informant or statements that a benefit
`would not be provided to an informant without his or her cooperation, whether or
`not such a promise or threat was fulfilled. “Benefits” refers to any monetary
`compensation, assistance of the prosecutor or the Court concerning pending
`charges against the informant, or any other sort of consideration of value;
`
`5. The nature of any such assistance provided to the informant in the past, including
`the numberof occasions and form ofhelp;
`
`any evidence or information that tends to even arguable link another individual to the crime
`charged;
`
`any other information in the possession of the governmentthat is favorable to the
`defense, whether or not admissible in court, and that is material to the issues of guilt
`and/or punishment.
`
`With respect to any of the information requested above, I hereby request any
`reports, records or other documents containing such information. If such reports, records
`or other documents are in the custody, control or possession of the government, they must
`be disclosed to the defense.
`
`In carrying out your constitutionally mandated Brady obligations, you should:
`
`YN
`
`5.
`
`6.
`
`7.
`
`Speak to all members of the “prosecution team”;
`Speak to all employees of the Office of the Attorney General involved with the case;
`Speak with all police investigators who handled the case;
`Review all case files maintained by youroffice, not just concerning the instant case but
`any related case;
`Search all criminal record databases to which you have access for criminal records
`concerning any potential witnesses in this case;
`Ask the FBI, DEA, and Metropolitan Police Departmentif they have any relevantfiles;
`and
`Examine any CSS reports and probation files relevant to this case.
`
`In addition to the above Brady request, I specifically request that I be provided with:
`
`1.
`
`Identification. The names and addresses of any person(s) who:
`
`a.
`
`identified some person other than Mr. Tuckeras a perpetratorofthe alleged offense.
`See Johnson v. United States, 136 A.3d 74, 85 (D.C. 2016); See also Cannon v.
`Alabama, 558 F.2d 1211 (Sth Cir. 1977); Grant v. Alldredge, 498 F.2d 376 (2d Cir.
`1974).
`
`

`

`Page 6
`
`b.
`
`failed to identify Mr. Tucker as a perpetrator of the alleged offense when asked to
`do so in any identification procedure, including any voice identification procedures.
`See United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2d Cir. 1964).
`
`gave any description(s) of the perpetrator of the alleged offense which in some
`material respect, e.g., height, weight, clothing, race, complexion, age, etc., differs
`from Mr. Tucker. See Frezzell v. United States, 380 A.2d 1382, 1385 (D.C. 1972);
`See also Jackson v. Wainwright, 390 F.2d 288 (Sth Cir. 1968).
`
`The namesand addressesofall persons who would contradict or impeach any government
`testimony or other evidence. See Gibson v. United States, 566 A.2d 473 (D.C. 1989).
`
`Any evidence or information that would support a motion to suppress statements, physical
`evidence, and/or identifications. See Biles v. United States, 201 A.3d 1012 (D.C. 2014).
`
`Any other information in the possession of the government which is favorable to the
`defense, whether or not technically admissible in court, and which is material to issues of
`guilt and/or punishment.
`
`Any Brady-related material concerning any government employee involved in this
`case, including, but not limited to:
`
`Officer Griffin, Officer Bell
`Any and all other government (current of former) employees, including MPD
`employees,
`involved in the investigation of these incidents including and not
`limited to: any pending investigation by the United States Attorney’s Office and
`the D.C. Office of Attorney General; any complaints, including open and pending
`complaints, or complaints that resulted in a finding of misconduct, submitted to the
`Civilian Complaint Review Board, or the Office of Police Complaints (OPC), and
`related investigations concerning these individuals; Brady-related material within
`the contents of these individuals’ personnel files; and any prior history between,
`relationships between, or interactions involving Mr. Tucker andthese individuals.
`
`The foregoing requests are made pursuant to Brady and its progeny. If you disagree with
`the legality of any of these requests, please let me know in writing so that we canlitigate the matter
`before the Court.
`
`L. Impeachment and Bias Material (Brady)
`
`I request:
`
`1. All information indicating that any witness had a bias, motive or reason to carry favor with
`the government, including the Metropolitan Police Department. This includes copiesofall
`civilian complaints, internal investigations or other disciplinary actions taken against any
`
`

`

`Page 7
`
`police officer involved in the arrest of Mr. Tucker This would include any past or pending
`complaints or investigations. This request is made under Superior Court Rule 16 and Brady.
`
`e
`
`Information about any lawsuits, adverse credibility findings, findings of
`misconduct or complaints sustained against any officers involved in the
`investigation and prosecution of this case, including, but not limited to:
`
`o Officer Griffin, Officer Bell_and all other officers involved in this
`matter. Specifically findings that officers represented false information to members
`of the USAOin Giglio forms,or testified falsely about the presence or lack of
`findings by PPMS related agencies.
`
`e
`
`[request that your search includes the files of OPC, IAD, and any other sources of
`personnel information (including but not limited to PPMS). I further request source
`documents for any such information. Given the repeated occurrence of the
`government denying such information exists only for it to be later uncovered by
`defense investigation or otherwise on the eveoftrial, I request a proffer of the steps
`the governmenthastaken to locate this information.
`
`Information about any complaints, lawsuits, or investigations of conduct pending at
`
`any involving any of point during this case (even if they were subsequently dismissed)
`
`the officers involved in the investigation and prosecution of this case, including, but
`not limited to:
`
`o Officer Griffin, Officer Bell_and all other officers involved in this
`matter.
`
`I request that your search includes the files of OPC, IAD, and any other sources of
`personnel information (including but not limited to PPMS).
`I further request source
`documents for any such information. Given the repeated occurrence of the government
`denying such information exists only for it to be later uncovered by defense investigation
`of otherwise on the eveoftrial, I request a proffer of the steps the government has taken to
`locate this information.
`
`All prior convictions and juvenile adjudications of all government witnesses. See Lewisv.
`United States, 393 A.2d 109 (D.C. 1978), aff'd on reh. 408 A.2d 303 (D.C. 1979). Pursuant
`to Lewis, I am specifically requesting that you obtain an FBI rap sheet for all government
`witnesses.
`
`All information in the possession of the government indicating that (a) any government
`witness has had a pending juvenile or criminal case on or since the offense in this case; (b)
`any government witness has had anarrest, guilty plea, trial, or sentencing on or since the
`date of the offense in the present case; (c) any government witness has been on juvenile or
`criminal parole or probation on or since that date of the offense; and (d) any government
`witness now hasor has had any otherliberty interest which the witness could believe or
`could have believed might be favorably affected by governmentaction. With respect to
`
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`

`Page 8
`
`this information, I request docket number, dates and jurisdictions for all such cases. See
`Davis v. Alaska, 415 U.S. 508 (1974); Washington v. United States, 461 A.2d 1037 (D.C.
`1983).
`
`Anyprior inconsistent, non-corroborative, or other witness’s statementsthat will not reflect
`the witness’s trial testimony. See United States v. Enright, 579 F.2d 980, 989 (6th Cir.
`1978).
`
`All information in the government’s possession indicating that the mental state of any
`government witness is below normalor in any way abnormal.
`
`All information that any governmentwitness was underthe influenceof alcohol, narcotics,
`or any other substance, including medication, at the time of the observations about which
`the witnesswill testify, or that the witness’s faculties of observation or recall were impaired
`in any wayat any relevant time, or that the witness habitually uses or is addicted to alcohol
`or drugs. See Robinson v. United States, 50 A.3d 508, 520 (D.C. 2012); See also United
`States v. Kearney, 136 U.S. App. D.C. 328, 410 F.2d 170 (1969); Jackson v. United States,
`377 A.2d 1151 (D.C. 1977). Please also disclose any information that any government
`witness was under the influence of drugs, alcohol, or medication at the time such witness
`testified in the grand jury.
`
`All information that any government witness has beenoris a police informanteither at the
`time of the offense and/or through the day of trial; if any witness is, or has been, an
`informant, then:
`
`(a)
`
`disclosure of the length and extent of the witness’s informantstatus;
`
`(b)
`
`the amounts paid to the informant;
`
`non-monetary assistance also providedto the informant, including, but not limited to,
`(c)
`assistance in avoiding or minimizing harm from charges pending against the informant,
`such status having existed either at the time of the offense and/or any other time through
`the day oftrial;
`
`(d) All benefits, or promises of benefit, or statements that benefit would not be provided
`without cooperation, that were made to the informant in connection with this case, whether
`or not fulfilled.
`“Benefits” refers to any monetary compensation, assistance of the
`prosecutor or a court concerning pending charges against the informant, any promises
`(express or implied) that any government agent will or may assist the witness with
`immigration issues, or any other sort of consideration of value;
`
`The nature of assistance provided in the past, including the numberof occasions and
`(e)
`form of help. See United States v. Bagley, 473 U.S. 667 (1985); Springer v. United States,
`388 A.2d 846 (D.C. 1978).
`
`

`

`Page 9
`
`10. All deals, benefits, or promises of benefit, threats, or statements that benefit would not be
`provided without cooperation that were made to any government witness in connection
`with this case. See Giglio v. United States, 405 U.S. 150 (1972); Springer, 388 A.2d 846.
`“Benefits” is defined in Section 6(d), supra.
`
`11. Any failures by any witness to provide the police or the government with information
`testified to attrial.
`
`12. Any information which tends to show a government’s witness’s corruption. See Jn re
`C.B.N., 499 A.2d 1215 (D.C. 1985). This request includes police officers. See Vaughn v.
`United States, 93 A.3d 1237, 1255 (D.C. 2014); Longus v. United States, 52 A.3d 836 (D.C.
`2012); Martinez v. United States, 982 A.2d 789, 795 (D.C. 2009).
`
`13. Perjury by any governmentwitness at any time, whether or not adjudicated and whether or
`not in connection with this case. See Mooney v. Holohan, 294 U.S. 103 (1935); Bennettv.
`United States, 797 A.2d 1251, 1258 (D.C. 2002); Sheer v. United States, 479 A.2d 732
`(D.C. 1983).
`
`14. All information that any government witness has made prior false accusations, including,
`but not limited to, prior complaints to the police or enforcement agenciesthat did notresult
`in a conviction.
`
`15. Any information regarding any prior “bad acts” of a government witness which may bear
`upon the veracity of the witness with respect to issues involved in the trial. See Andre v.
`United States, 482 A.2d 374 (D.C. 1984); See also Kitchen v. United States, 95 U.S. App.
`D.C. 277, 221 F.2d 832 (1955).
`
`16. Any other information which tends to show a witness’s bias or which otherwise impeaches
`a witness’s testimony. See United States v. Bagley, 473 U.S. 667 (1985).
`
`17. Any other information in the possession of the government which is favorable to the
`defense, whether or not technically admissible in court, and is materialto the issues of guilt
`and/or punishment.
`
`The foregoing requests are made pursuant to Brady andits progeny. If you disagree with the
`legality of any of these requests, please let me know in writing so that we can litigate the matter before
`the Court.
`
`Jencks (Rule 26.2) Requests
`
`Please be advised that Mr. Tucker is requesting prompt disclosure of any andall Jencks
`materials pursuant to D.C. Super. Ct. R. Crim. P. 26.2. Undersigned counsel is aware that Rule
`26.2(a) does not require the government to produce such materials until after a witness has
`testified. Rule 26.2(d), however, expressly authorizes the Court to recess proceedings when
`counsel requires time to examine and use the materials provided under subsection (a). Such a recess
`wastes valuable court time and resources. Thus, unless the government has legitimate concerns
`
`

`

`Page 10
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`about witness safety, please disclose any Jencks material well in advanceoftrial so as to avoid
`any costly delays.
`
`Duty to Preserve Discoverable Evidence
`
`“The duty to produce discoverable evidence entails the antecedent duty to preserve that
`evidence.” Walker v. United States, 649 A.2d 548, 553 (D.C. 1994) (citing Brown v. United
`States, 372 A.2d 557, 560 (D.C. 1977)). Accordingly, I remind you of the government’s duty to
`preserve any evidencethat is discoverable or that the governmentis obligated to disclose pursuant
`to Brady and its progeny, including, for example, any materials that might yield biological or
`chemical evidence, including but not limited to samples of the alleged drug to be made available
`for defense testing.
`
`Continuing Duty to Disclose
`
`The duty to disclose under Rule 16 and under Brady (and its progeny) is a continuing one
`and the requests stated above are therefore continuous, stretching until final disposition of this
`case. Thank you for your promptattention to these requests.
`
`Sincerely,
`
`/S/ Varsha Govindaraju
`Varsha Govindaraju
`Public Defender Service
`Counsel for Mr. Tucker
`Tel:
`(202) 731-5932
`Email: VGovindaraju@pdsdc.org
`
`